31 TAC §15.12
The Texas General Land Office (GLO) proposes new §15.12,
relating to a Temporary Order Issued by the Land Commissioner.
The GLO proposes new §15.12 to implement the authority granted to
the Land Commissioner by virtue of amendments to the Texas Open Beaches Act,
Chapter 61, Texas Natural Resources Code, effected by passage of HB 1457 in
the 78th Legislature. HB 1457, which became effective June 18, 2003, added §61.0185
to the Texas Natural Resources Code. Section 61.0185, authorizes the Land
Commissioner to issue an order that would prohibit for a period of two years
from the date the order is issued the filing of a suit under §61.018
by the attorney general or any county attorney, district attorney, or criminal
district attorney to remove any improvement, obstruction, barrier, or other
encroachment from a public beach.
The purpose of the new rule, as stated in §15.12(a), is to provide
standards and procedures for the temporary suspension of enforcement of the
prohibition against encroachments on, and interferences with, the public beach
easement and the ability of a property owner to make repairs to a house while
a suspension is in effect. This rule is promulgated under the authority of §61.011(d)(7)
of the Texas Natural Resources Code.
Proposed new §15.12(b) contains definitions applicable to this section.
Proposed new §15.12(c) contains procedures for the issuance of an order
under this section. Section 15.12(d) contains provisions and limitations related
to the issuance by a local government of a certificate or permit authorizing
the repair of a house subject to an order under this section. Section 15.12(e)
provides that a local government shall coordinate with littoral property owners
for the removal of all beach debris from the beach/dune system and disposal
in an appropriate landfill, while an order under this section is in effect.
Section 15.12(f) allows for the placement of beach-quality sand underneath
the footprint of the house and in an area up to five feet seaward of the house,
while an order issued under this section is in effect. Section 15.12(g) contains
provisions requiring that a local government submit an application for a permit
or certificate under this section to the GLO for review. Proposed new §15.12(g)
also contains requirements related to the information that applicants must
submit with their applications. Section 15.12(h) provides that a local government
is responsible for monitoring the repair of the house pursuant to a permit
or certificate issued under this section, and that a permit or certificate
issued by a local government under this order expires automatically on the
date the order expires. Also, the owners of houses encroaching on the public
beach easement that are not subject to an order issued under this section
may not obtain a permit or certificate from a local government for repairs.
Bill Peacock, Deputy Commissioner for the GLO's Coastal Resources Division,
has determined that for each year of the first five years the section as proposed
is in effect there will be minimal fiscal implications for the state and units
of local government as a result of enforcing or administering the new section.
Local governments with beach/dune permitting authority may experience some
additional cost due to the issuance and monitoring of additional permits or
certificates for houses under the temporary order. However, any additional
cost should be minimal, because local governments currently issue and monitor
permits and certificates for structures under the current beach/dune rules.
The GLO may experience some additional cost related to determinations required
for issuance of orders and review of additional permits or certificates issued
by local permitting entities pursuant to an order. However, the GLO currently
monitors the line of vegetation and the location of the public beach easement
and reviews permits and certificates. Any increase in workload caused by issuance
of an order is expected to be minimal for both the GLO and local permitting
entities.
There will be no economic cost to persons required to comply with these
regulations. The public benefit from this proposed rule will be greater public
certainty regarding the GLO's Open Beaches Act enforcement process following
a meteorological event. A temporary suspension of enforcement of the prohibition
against encroachments on, and interferences with, the public beach easement,
and the ability of a property owner to make repairs to a house while a suspension
is in effect, will provide beachfront property owners a greater level of certainty
following a meteorological event, before a determination is made on structures
that may encroach on the public beach easement. In addition, a temporary suspension
of enforcement will allow for the natural recovery of the beach and indigenous
vegetation before a determination is made on structures that may encroach
on the public beach easement. Following the end of a temporary suspension
period, there will be an assessment of whether enforcement actions are required
with regard to any encroaching structures. The proposed rule will assist the
public and local governments by providing procedures and guidelines related
to the issuance and implementation of an order.
The GLO has determined that there will be no effect on small businesses,
and that a local employment impact statement on these proposed regulations
is not required, because the proposed regulations will not adversely affect
any local economy in a material manner for the first five years they will
be in effect.
The proposed §15.12 is subject to the Coastal Management Program (CMP),
31 TAC §505.11(a)(1)(J), relating to the Actions and Rules Subject to
the Coastal Management Program. The GLO has reviewed this proposed action
for consistency with the Coastal Management Program goals and policies in
accordance with the regulations of the Coastal Coordination Council (Council).
The GLO has determined that the proposed actions are consistent with applicable
Coastal Management Program goals and policies. The proposed amendments will
be distributed to council members in order to provide them an opportunity
to provide comment on the consistency of the rule package during the comment
period.
Comments may be submitted to Ms. Melinda Tracy, Texas Register Liaison,
Texas General Land Office, Legal Services Division, P.O. Box 12873, Austin,
TX 78711-2873; facsimile number (512) 463-6311; email address melinda.tracy@glo.state.tx.us.
Comments must be received no later than 5:00 p.m., 30 (thirty) days after
the proposed rules are published.
This new section is proposed under Texas Natural Resources Code,
Chapter 61, §61.011(d)(7), which authorizes the GLO to adopt rules related
to the temporary suspension of enforcement of the prohibition against encroachments
on, and interferences with, the public beach easement and the ability of a
property owner to make repairs to a house while a suspension is in effect.
Texas Natural Resources Code §§61.011 and 61.0185 are affected
by the proposed rule.
§15.12.Temporary Order Issued by the Land Commissioner.
(a)
Purpose. The purpose of this section is to provide standards
and procedures for the temporary suspension under §61.0185 of the Texas
Natural Resources Code of enforcement of the prohibition against encroachments
on and interferences with the public beach easement and the ability of a property
owner to make repairs to a house while a suspension is in effect. This rule
is promulgated under the authority of §61.011(d)(7) of the Texas Natural
Resources Code.
(b)
Definitions. In addition to the definitions contained in §15.2
of this title (relating to Definitions), the following words and terms, as
used in this section, shall have the following meanings:
(1)
Beach debris - Anything that is not native to the beach
and beach/dune system, including but not limited to pilings, concrete, fibercrete,
rebar, riprap, boulders, automobile parts, rubble mounds, damaged dune walkovers,
garbage, and other objects, that may pose a hazard to public health and safety
and/or no longer serves the purpose for which it was originally intended.
(2)
The Code - The Texas Natural Resources Code.
(3)
Habitable - The condition of the premises which permits
the inhabitants to live free of serious defects to health and safety.
(4)
House - A single or multi-family structure that serves
as permanent, temporary or occasional living quarters for one or more persons
or families.
(c)
The Code §61.0185 authorizes the commissioner to issue
an order suspending, for a period of two years from the date of the order,
the submission of a request that the attorney general file suit for enforcement
under §61.018 of the Code. An order issued by the commissioner under
this section shall be:
(1)
posted on the General Land Office's Internet Web Site,
www.glo.state.tx.us;
(2)
published by the General Land Office as a miscellaneous
document in the
Texas Register
; and,
(3)
filed for record by the General Land Office in the real
property records of the county in which the house is located.
(d)
While an order issued under this section is in effect,
a local government may issue a certificate or permit authorizing repair of
a house subject to this order if the local government determines that the
repair:
(1)
is solely to make the house habitable including reconnecting
the house to utilities;
(2)
does not increase the footprint of the house;
(3)
does not include the use of impervious material, including
but not limited to concrete or fibercrete, seaward of the natural line of
vegetation;
(4)
does not include the construction of an enclosed space
below the base flood elevation and seaward of the natural line of vegetation;
(5)
does not include the repair, construction, or maintenance
of an erosion response structure seaward of the natural line of vegetation;
(6)
does not occur seaward of mean high water; and,
(7)
does not include construction underneath, outside or around
the house other than for reasonable access to the house.
(e)
Debris on the public beach creates a hazard to public health
and safety and can threaten Gulf-facing properties. While an order issued
under this section is in effect, a local government shall coordinate with
littoral property owners to remove beach debris from the public beach as soon
as possible. All beach debris collected from the public beach shall be removed
from the beach/dune system and disposed of in an appropriate landfill.
(f)
While an order issued under this section is in effect,
beach-quality sand may be placed underneath the footprint of the house and
in an area up to five feet seaward of the house. The beach-quality sand must
remain loose and unconsolidated, and cannot be placed in bags or other formed
containment. In addition, the beach-quality sand must be an acceptable mineralogy
and grain size when compared to the sediments found in the beach/dune system.
The use of clay or clayey material is not allowed.
(g)
While an order issued under this section is in effect,
a local government shall submit the certificate or permit application for
repair of a house under this section to the commissioner for review. If the
commissioner does not object to or otherwise comment on the application within
ten working days of receipt of the application, the local government may act
on the application. Local governments shall require that all permit and certificate
applicants fully disclose in the application all items and information necessary
for the local government to make an affirmative determination regarding a
permit or certificate for repairs. Local governments may require more information,
but they shall submit to the Land Office the following information:
(1)
the name, address, phone number, and, if applicable, fax
number or electronic mail address of the applicant, and the name of the property
owner, if different from the applicant;
(2)
a complete legal description of the tract and a statement
of its size in acres or square feet including the location of the property
lines and a notation of the legal description of adjoining tracts;
(3)
the floor plan, footprint or elevation view of the house
identifying the proposed repairs;
(4)
photographs of the site which clearly show the current
conditions of the site; and
(5)
an accurate map, site plan, plat or drawing of the site
identifying:
(A)
the site by its legal description, including, where applicable,
the subdivision, block, and lot;
(B)
the location of the property lines and a notation of the
legal description of adjoining tracts, and the location of any roadways, driveways
and landscaping that currently exist on the tract;
(C)
the location of any seawalls or any other erosion response
structures on the tract and on the properties immediately adjacent to the
tract;
(D)
the location of the house and the distance between the
house and mean high tide, and the natural line of vegetation; and,
(E)
if known, the location and extent of any man-made vegetated
mounds, restored dunes, fill activities, or any other pre-existing human modifications
on the tract.
(h)
While an order issued under this section is in effect,
a local government is responsible for monitoring the repair of the house under
this section. Any permit or certificate issued by a local government under
this order expires automatically on the date the order expires. Local governments
may not issue permits or certificates for repairs to houses located on the
public beach easement that are not subject to an order issued under this section.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on July 28, 2003.
TRD-200304546
Larry L. Laine
Chief Clerk, Deputy Land Commissioner
General Land Office
Earliest possible date of adoption: September 7, 2003
For further information, please call: (512) 305-9129